Calif. Appeals Court Tosses iPhone Theft Charge as 'Temporary Taking'

PHOTO: A man holds an Apple iPhone 4, Dec. 16, 2010.

An appellate court in Contra Costa County, Calif., has discovered a previously unknown pastime: cellphone joyriding.

It looks a lot like theft.

It involves a stranger taking violent possession of an owner's phone against the owner's will. It involves the owner being punched repeatedly in the head by the stranger. But, found the court, this isn't theft. It's "temporary taking"--something far more akin to a kid borrowing your car for a joyride.

The facts of the case, according to the appellate court's decision, filed September 26, are these:

"On December 20, 2010, Matthew Cardoza was standing outside the hospital where he worked, taking a 10 minute break. He was using his new Apple iPhone 4 cell phone to exchange text messages with his fiancee."

He had just hit "send" on his last text when up came an agitated man--a stranger to Cardoza--who said, according to the court filing, "Hey, man, let me get that phone."

The stranger took the phone out of Cardoza's hands and made off with it.

Cardoza gave chase, grabbed the man by the back of his shirt, spun him around and grabbed for the phone. They struggled.

During the struggle, the stranger yelled, "Give me the phone, give me the phone. I'll hurt you. Give me the phone." He punched Cardoza in the head several times.

Cardoza got the phone back, after which the man said, "I'll pay you, I'll pay you. I just want the phone." Cardoza told the man he didn't want his money and asked him please to leave him alone. The man tried to apologize and told Cardoza he needed to get help because his mother "had just got her house on fire."

The violent stranger was Kurt Carr.

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It had already been a full day for Carr before the incident with Cardoza. That same morning, the mother of his fiancee had been driving him to a doctor's appointment at the hospital when the two had gotten into an argument. Carr decided to jump out of the car while it was still moving, according to the filing.

"He felt he had to call his fiancee immediately to tell her about his fight with her mother," according to court papers. He already was agitated and distraught because, according to the court filing, his mother's house had burned down a few days previously, "and he believed the fire was caused by faulty repair work he had done."

Carr went looking for a phone, and saw Cardoza on his new iPhone. "Man, let me get the phone. Let me use your phone....Can I use your phone?" he said to Cardoza, according to the filing.

Cardoza told him no. Karr asked again, and was again refused. The struggle for the phone then ensued.

The court found that in order to prove theft, the prosecution would had have to have shown that "[Karr] intended to deprive [Cardoza] of [the phone] permanently or to remove it from [Cardoza's] possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property."

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As for "permanently," the California Supreme Court previously had decreed, according to the appellate court, that permanently didn't have to be all that permanent. "Our Supreme Court has ruled...that this intent requirement is flexible and not to be taken literally."

As for "for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property," said the court, the major-ness of the deprivation depends on circumstance.

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